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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term

No. 35324

FILED November 18, 2010
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

BEVERLY J. MULLINS,
Petitioner Below, Appellant
v.
RICHARD R. MULLINS,
Respondent Below, Appellee


Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Civil Action No. 99-D-816
REVERSED AND REMANDED


Submitted: September 15, 2010
Filed: November 18, 2010


James T. Cooper, Esq. Law Offices of James T. Cooper Charleston, West Virginia Attorney for Appellant

Andrew S. Nason, Esq. Pepper & Nason Charleston, West Virginia Attorney for Appellee

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT


1.

"In reviewing a final order entered by a circuit court judge upon a

review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). 2. "Mature alimony and child support installments are judgments for

money which accrue statutory interest from the date the payments are due." Syllabus Point 5, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).

Per Curiam:

This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on December 11, 2008. In the order, the circuit court denied an appeal of a family court order entered on September 12, 2008, that was filed by the appellant and petitioner below, Beverly J. Mullins, k/n/a Beverly J. Hemmings (hereinafter "Ms. Hemmings"). Ms. Hemmings contends that the family court erred in calculating the past due child support owed to her by her ex-husband, the appellee and respondent below, Richard R. Mullins (hereinafter "Mr. Mullins"). Specifically, Ms. Hemmings claims that Mr. Mullins owes her $40,133.25 for unpaid child support and interest; yet, the family court only ordered him to pay her $12,212.00.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is reversed, and this case is remanded for further proceedings consistent with this opinion.

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I.
FACTS


The parties were married on September 9, 1995, and were divorced by an order of the Circuit Court of Kanawha County entered on June 2, 1999. During their marriage, the parties had one child, a son, who was born on August 14, 1997. Pursuant to the final divorce order and property settlement agreement, the parties agreed that they would equally share the parenting of their son and that Mr. Mullins would pay child support in the amount of $400.00 per month. In addition, the parties agreed that they would each pay one-half of the daycare expenses and one-half of any costs for extracurricular activities. Mr. Mullins agreed to maintain medical insurance for the child at his expense.

On March 20, 2006, Mr. Mullins filed a petition for modification seeking to prohibit Ms. Hemmings from relocating to Raleigh, North Carolina, with their son upon her marriage to Aaron Hemmings. On March 30, 2006, Ms. Hemmings filed a Notice of Relocation, and on April 11, 2006, she filed a Response to the Petition for Modification and Counter-Petition. Ms. Hemmings alleged that Mr. Mullins had failed to pay his courtordered child support and failed to maintain health insurance on their son causing her to incur medical expenses for him. She further claimed that she had not received her share of the proceeds from the sale of the marital home and that Mr. Mullins had failed to transfer certain

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marital funds into a trust account for their son as was set forth in the property settlement agreement. Finally, she sought approval of her plan to relocate to Raleigh, North Carolina, with the child.

Thereafter, the family court held a series of hearings on the issues raised in the petitions and, following a telephonic hearing on March 13, 2007, entered an order concluding that from the date of the Divorce Order until August of 20061 the father should have paid eight-six (86) payments of child support. The father has paid Four Thousand Two Hundred Seventy Two Dollars ($4,272.00) in child support, and he is entitled to receive a credit for child support in the amount of Eight Thousand Seven Hundred Fifty-Eight Dollars and Seventy-Four Cents ($8,758.74) for the house payment and Nine Thousand One-Hundred Fifty Seven Dollars and Ninety Eight Cents ($9,157.98) that he overpaid in equally divided payments.2 Dividing that number by Four Hundred Dollars ($400.00), the father is entitled to a finding that he has in effect paid 55.47 months of child support and he owes 30.53 months of child support arrears of Twelve Thousand Two Hundred Twelve Dollars ($12,212.00). Interest shall accrue as normally calculated on child support, assuming that the payment of Four Hundred Dollars ($400.00) for February 2005 was the first payment due and had not been paid, and no other payments had been made. The Court calculated child support based on the Income Shares Formula, and orders the mother to pay Eighteen Dollars In August 2006, the custody arrangement changed and Mr. Mullins's child support obligation ended. See note 3, infra. As will be discussed herein, the overpayment related to daycare and other expenses for the child. 3

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($18.00) in child support to the father.3 If child support had begun in September 2006, the mother would have paid Two Hundred and Eighty-Eight Dollars ($288.00) to the father in child support up to December, 2007, and he is entitled to a credit against the unpaid arrears in child support in that amount. (Footnotes added). Ms. Hemmings filed an appeal of the family court order with the circuit court which was denied by order entered on December 11, 2008. This appeal followed.

II. STANDARD OF REVIEW

In the Syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), this Court explained: In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

With these standards in mind, the assignments of error will be considered.

Ms. Hemmings was ordered to pay child support because the family court ordered a 56/44 split in parenting time upon her relocation to North Carolina; the child now resides with Mr. Mullins 207 days per year and with Ms. Hemmings 158 days per year. 4


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III.
DISCUSSION


While several matters were brought before the family court, the only issue in this appeal is the amount of past due child support and interest owed by Mr. Mullins. Ms. Hemmings first contends that the family court erred by giving Mr. Mullins an offset against the child support arrearage for mortgage payments he made on the former marital home. The family court concluded that Mr. Mullins was entitled to an offset of $8,758.74 against the child support arrearage for one-half of the house payments that Ms. Hemmings should have paid from the date of the divorce hearing until the beginning of the month immediately following the first refinance of the house which occurred when Ms. Hemmings transferred her interest in the property to Mr. Mullins.

The property settlement agreement provided that the martial residence would be immediately sold and that Ms. Hemmings would have possession of the house while it was on the market for sale. The agreement further provided that each party would pay half of the mortgage payments until the home was sold. Upon the sale of the home, the mortgage was to be paid in full, the first $25,000.00 of the sale proceeds was to be distributed to Mr. Mullins, and the remaining amount of the proceeds was to be split equally between the

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parties. Ms. Hemmings was to pay Mr. Mullins $10,000.00 out of her proceeds for his interest in the family automobile.

According to Ms. Hemmings, she moved out of the residence in March 2000, and agreed to transfer her interest in the home to Mr. Mullins in exchange for him being responsible for the entire mortgage payment each month. Mr. Mullins then lived in the home until it was finally sold in 2006. Mr. Mullins netted a profit of $48,651.47 from the sale of the home. Pursuant to the property settlement agreement, Mr. Mullins was to receive $36,825.74 from the sale proceeds and Ms. Hemmings would have receivd $11,825.73. According to Ms. Hemmings, she paid Mr. Mullins $10,000.00 for his interest in the family automobile from other sources and agreed to relinquish her right to proceeds from the sale of the house in return for a release from any claim by Mr. Mullins for paying her share of the mortgage payments. Therefore, Ms. Hemmings contends that the family court erred by giving Mr. Mullins a credit against the child support arrearage in the amount of $8,758.74 for one-half of the mortgage payments that he made on the house between the date of the divorce decree and her relinquishment of her interest in the residence to him.

Mr. Mullins contends, however, that because both parties lived in the marital home after the divorce, first Ms. Hemmings and then himself, and because the child was continuously living in the marital home half of the time, the mortgage payments inured to the

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benefit of the child because they preserved the marital home. Therefore, Mr. Mullins reasons that the circuit court did not err in giving him a credit against the child support arrearage for those months that he paid the entire mortgage payment.

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